We were looking in an earlier blog of this week at section 55 and the implied warranty with particular emphasis on the sale of motor vehicles and disgruntled consumers who had recently bought a new or used vehicle from a motor car dealership and discovered defects or damage to its components shortly after the sale.

If this situation has happened to you; you have the protection of the Consumer Protection Act No 68 of 2008 (CPA) and also the common law; unless you caused the damage or defect to the vehicle yourself.

In enforcing your rights you need to follow a formal legal process and this must be done promptly, properly and professionally to be legally effective.

The basis of the protection you enjoy in terms of the CPA is the implied warranty on the quality of goods guaranteed by the Consumer Protection Act and more particularly section 55 & 56 of that piece of legislation.

There is still a lot of confusion about the Consumer’s Right to choose a Repair, Replacement or Refund in respect of Damaged or Defective Goods as guaranteed by these sections of the Act.

As we all know by now the Consumer Protection Act (CPA) came into operation at midnight on the 31st March 2011.

On Monday we looked at the implied warranty in term of section 55.

Today we look again at section 56 and your remedies a set out in the CPA so that you understand your consumer rights better.

Section 56 (2) of the Consumer Protection Act, No 68 of 2008 reads as follows:

“Within six months after the delivery of any goods to a consumer, the consumer may return the goods to the supplier, without penalty, and at the supplier’s risk and expense, if the goods fail to satisfy the requirements and standards contemplated in section 55 (Consumers rights to safe, good quality goods) and the supplier must, at the direction of the consumer, either:

Repair or replace the failed, unsafe or defective goods, or

Refund to the consumer the price paid by the consumer for the goods.”

That seems pretty straight forward; and to a very large extent self-explanatory.

Why then do so many suppliers duck and dive; and attempt to avoid their legal obligations to the consumer and their customers. The answer to this question is that it is a nuisance to a supplier and they need to take time out; and incur cost; in repairing, replacing or refunding a consumer for an item that they have already sold to them. Things were far too comfortable for suppliers before the advent of the Consumer Protection Act as they, in the past, would simply tell us that it was not their problem once we had taken delivery of an item and paid for it.

One has to remember that the provisions of this Act and these sections do not cover private individuals as sellers; as they are not suppliers or service providers conducting their sale in the ordinary course of business. In short the act does not cover private sales. Your remedies in the case of private sales lie in the common law of contract.

One has to look at the definition of “a consumer” and “a supplier; in order to get confirmation that private sales are not covered by these provisions of the Consumer Protection Act.”

Section 1 is the definition section of the Consumer Protection Act No 68 of 2008.

In section 1; “a consumer’ is defined in great detail. It will suffice for our purposes here to simply quote from part of the full definition: “A consumer means a person to whom those particular goods or services are marketed in the ordinary course of the supplier’s business.” The section then goes on to give a more comprehensive detailed definition which it is not necessary to dissect here but the definition of a consumer is very wide and includes just about anyone buying an item from someone else who is conducting a business enterprise in selling amongst other things that particular item/items.

One also has to look at the definition of “a supplier” for clarity here.

Section 1 also defines “a supplier” which means: “A person who markets any goods or services.”

This is also a very wide definition.

As a consequence, the Consumer Protection Act covers both goods and services provided by a supplier to a consumer.

It does not apply to private sales as although all buyers are consumers as defined in the Act; the sellers however are not suppliers; as they do not sell their items in the ordinary course of a business enterprise; but only occasionally on a once off basis. Clearly there may be exceptions to this rule; eg someone who is not a dealer but runs a business selling second hand cars in his spare time. He may well then be a supplier as defined in the Act although not a registered car dealer.

The Consumer Protection Act applies to all unsafe, damaged and defective goods; provided they are bought from a supplier acting in the ordinary course of his business.

As a consumer of both goods and services our section 56(2) choice, as consumers, of “repair, refund or replace” in respect of damaged or defective goods is in addition to; and over and above the manufacturer’s warranty; and also in addition to, and over and above, any common law remedies that we may have; for example; where latent defects were deliberately not disclosed to us by a supplier.

You, as a consumer could very well then have three separate potential claims available to you in a dispute with a supplier. These claims could be in terms of the CP Act, a common law remedy and/or in terms of a manufacturer’s warranty; provided that that dispute relates to unsafe, damaged or defective goods or services.

As stated above it is important to enforce your legal rights in terms of the CPA through a consumer lawyer or legal professional specialising in the CPA.